40 posts from December 2013

12/31/2013

Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting:

It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar; and Peter Swire, a privacy-law expert who also worked in the Clinton administration. I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel is rounded out by two intelligence-community veterans: former Clinton counterterrorism czar Richard Clarke, best known for his bitter criticism of the Bush administration during the 9/11 Commission hearings; and former Obama acting CIA director Michael Morell, best known for purging references to al-Qaeda and terrorism in the drafting of the agency’s fraudulent Benghazi “talking points” that have lived in infamy since Susan Rice repeatedly parroted them on national television.

McCarthy then goes on to claim that the judiciary should not be involved in national security matters; instead, such matters should be subject to congressional check. He writes:

Predictably, the panel’s report would put federal judges in charge of our homeland defense. Government agents would not only need to represent to a court that they had a good-faith national-security purpose for seeking information that is not constitutionally protected; they would now have to prove it to the court’s satisfaction. The judge, not the president and intelligence agents, would decide what foreign threats were serious and what operatives should be investigated.

This is antithetical to the Framers’ conception. They gave no national-security role to the courts — not because judges are unreliable but because they are unaccountable politically. In a free, self-determining society, security decisions must be made by political actors answerable to the people whose lives hang in the balance. Courts do not answer to the voters, and because their job is to ensure fairness and protect individuals from government excess, they inexorably increase due-process safeguards over time. This is a fine thing if we are talking about peacetime law enforcement and Americans presumed innocent; it can be a perilous thing in wartime when enemies attack in stealth.

Well, yes and no. The Constitution does clearly put certain matters in the hands of courts. If the President wants to search an American citizen of information about national security matters, the Fourth Amendment clearly places a limit on such searches, one that is enforced by the judiciary. If material is not constitutionally protected, then the Constitution does not mandate a role for the courts, but it is not clear – to me at least – that the Constitution forbids Congress from authorizing courts to hear lawsuits about whether the executive can acquire nonconstitutionally protected information.

Finally, McCarthy recognizes that courts might be prone to overprotection of due process safeguards. Yet, he does not seem to recognize that the executive (and the national security people in Congress) might be prone to over underprotection of privacy interests.

Whatever one thinks of Edward Snowden, his releases have made clear that the government has been engaged in large amounts of data collection that the government repeatedly denied to the American people. A significant review is clearly needed. And if there is to be some check on the executive, it is by no means clear that there is a real alternative to a significant judicial role.

Crucial to the U.S. Supreme Court’s disposition of the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which the U.S. Congress never had considered and nobody thought would ever be enacted. For the five justices who concluded that the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to explain adequately why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.

This Article argues that the fact that all the justices insisted on providing a limiting principle—which was the demand underlying the broccoli hypothetical—was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, the Court almost always uses narrow, localist reasoning that analyzes only the government’s actual action when confronted with novel constitutional questions. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one.

The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the ACA. In the courts—where, strictly speaking, the doctrinal question involved not personal liberty but congressional power—broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together the popular constitutional movement mobilized against the ACA and the constitutional challenge taking place in the courts.

We conclude with a normative assessment of this extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.

Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.”

The language of Section One of the Fourteenth Amendment, viewed in its legal and historical context, is replete with ambiguity. There is no scholarly consensus as to the amendment’s original meaning and its text and history do not permit us to choose with confidence among possible interpretations. Although there is wide agreement that the Privileges or Immunities Clause was Section One’s central provision, the original scope of that clause and its relation to Due Process and Equal Protection Clauses remain unclear. Recent interpretations literally run the gamut from the claim that the Privileges or Immunities Clause protected no new rights, to claims that it protected only a limited and relatively well-defined set of rights (variously defined by different interpreters), to the claim that it protected an open-ended set of rights that can never be completely specified or enumerated. A significant case can be made for and against each of these interpretations. In fact, the Fourteenth Amendment had not one but many “original meanings,” and to reduce its polyvalent text to a single “original meaning” is to traduce its history. Yet as the most important repository of individual rights in our Constitution, the Fourteenth Amendment must be given meaning by the people, their elected representatives, and the courts. The original understandings of its framers and ratifiers provide a point of departure for this interpretive endeavor, but can never fully specify the Amendment’s meaning for the present generation.

Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment—which they despised—as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. This Article explores the fundamental challenge that this history poses to originalism.

12/24/2013

Over at the Liberty Law Blog, I have post on how one should define optimal laws when not all of the people in one's nation have different evaluations of those laws. Here is an excerpt:

To generalize the point, there are two sets of considerations that one should attend to in designing optimal institutions. First, one should consider whether the institutions actually produce liberty and wealth. Second, one should consider how much support they enjoy from the people who they govern. While classical liberal institutions will, in my opinion, be the best under the first consideration, that will not be the case under the second consideration if a significant percentage of the public are not classical liberals.

This argument is used in my new book with John McGinnis to argue that a supermajoritarian enacted Constitution is likely to be a good one.

Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an oath of fealty to the Constitution, and thus, despite one’s views on political obligation generally (in Against Obligation, I argue that there is no general, content-independent, moral duty to obey the law), one might think that in taking their jobs, officials in the U.S. accept the Constitution and are bound by it. In this essay, I also respond to some of Seidman’s critiques of my book.

Who speaks in federal court for the structural principles of the federal Constitution? Under familiar practice — endorsed by the Supreme Court in its 2011 decision Bond v. United States — it is not solely the institutions empowered directly by federalism or the separation of powers but also individual litigants who can raise structural constitutional objections. Such individual standing for the structural constitution is unusual because, in effect, it enables a species of third-party standing elsewhere condemned by the Court. This Article analyzes individual standing for the structural constitution from both doctrinal and political economy perspectives. Such individual standing, I contend, conflicts with Article III’s larger ambition to exclude from federal court those controversies with excessive externalities. Consideration of structural litigation’s political economy further shows that enlarging the pool of litigants by allowing individual as well as institutions to sue is unlikely to yield closer conformity to the Constitution given interest group dynamics. As an alternative to the current regime, the Article specifies a straitened regime of narrow justiciability that is more harmonious with Article III goals and more likely to secure fidelity to the structural constitution